Biden classified document controversy: What we know and how the president’s case differs from Trump’s
Jerry Dunleavy
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Classified documents from the Obama presidency found at an office previously used by President Joe Biden drew immediate comparisons to the FBI raid of former President Donald Trump’s home at Mar-a-Lago.
The Biden controversy, quickly seized upon by Republicans, has some similarities to, and some key differences with, the raid of Trump’s Florida resort.
BIDEN DOCUMENTS UNDERMINE PROSECUTION OF TRUMP
Here’s what we know so far:
The investigators
Attorney General Merrick Garland selected U.S. Attorney for the Northern District of Illinois John Lausch to handle the Biden classified documents saga after the records were found by the president’s attorneys at the Washington-based Penn Biden Center for Diplomacy and Global Engagement in November 2022.
Lausch is one of only two Trump-appointed federal prosecutors kept on by Biden — the other is David Weiss, the U.S. attorney for Delaware, who is investigating Biden’s son Hunter.
CBS News reported Garland told Lausch that he should “find out how the material marked classified ended up” there and that “the review is considered a preliminary step, and the attorney general will determine whether further investigation is necessary, including potentially appointing a special counsel.”
After the Justice Department handled the Mar-a-Lago saga for months before and after the raid, Garland appointed Kosovo war crimes prosecutor Jack Smith to take over in November 2022.
Smith served under former President Barack Obama’s Attorney General Eric Holder, leading the DOJ’s Public Integrity Unit from 2010 to 2015. Smith led a team of 30 prosecutors in conducting public corruption cases throughout the United States, including a mixed track record of going after high-profile politicians. He also inserted the DOJ into what would become the Lois Lerner IRS scandal targeting conservative nonprofit groups during the Obama years.
The Office of the Director of National Intelligence conducted a “damage assessment” related to the Mar-a-Lago documents, and Republicans are calling on ODNI to do the same with Joe Biden’s records.
How it happened
Biden’s White House special counsel Richard Sauber said Monday that “a small number of documents with classified markings,” along with an unspecified number of “what appear to be Obama-Biden Administration records,” had been “discovered” by Biden’s personal attorneys at the Penn Biden Center as they packed “files housed in a locked closet to prepare to vacate office space.”
Sauber said that Biden had “periodically used this space from mid-2017 until the start of the 2020 campaign.” Biden declared his candidacy in late April 2019. Sauber said the discovery was made on Nov. 2, 2022, six days before Election Day, and that the White House Counsel’s Office notified the National Archives the same day.
“The Archives took possession of the materials the following morning. Since that discovery, the president’s personal attorneys have cooperated with the Archives and the Department of Justice in a process to ensure that any Obama-Biden Administration records are appropriately in the possession of the Archives,” the White House special counsel said.
Sauber insisted that “the documents were not the subject of any previous inquiry or request by the Archives” — presumably meaning that the National Archives did not know that Biden had been hanging on to classified documents for years.
Sources claimed to CBS News that Biden only learned about the presence of the documents after his personal lawyer made the White House counsel’s office aware of it in early November 2022 and that Biden did not know what the documents contained.
In comparison, Trump returned an initial batch of 15 boxes from Mar-a-Lago to the National Archives in January 2022. However, the National Archives said it had found some records with classified markings and believed Trump continued to possess other records, and in February 2022, it referred the issue to the Justice Department.
Acting Archivist Debra Wall sent a May letter to Trump lawyer Evan Corcoran, informing him that an initial review “identified items marked as classified national security information.”
The archivist said this resulted in Biden and the White House being made aware of the situation as the FBI sought access to the records.
The National Archives told Trump’s lawyers in early May 2022 that it “will provide the FBI access to the records in question, as requested by the incumbent President [Biden].”
The letter was followed the next day by a grand jury subpoena, then by a June visit to Mar-a-Lago by investigators, and finally by the August 2022 raid.
Garland quickly said that he “personally approved” the raid.
In justifying the raid, the Justice Department argued in court filings in late August 2022 that “the government also developed evidence that government records were likely concealed and removed from the Storage Room [at Mar-a-Lago] and that efforts were likely taken to obstruct the government’s investigation.”
JACK SMITH’S MIXED TRACK RECORD
Classified
Sauber said the documents found at the Biden Penn Center in November 2022 included “a small number of documents with classified markings.” A source told CNN that there were fewer than a dozen classified documents at the Biden office, but that some of those documents were top secret and had the “sensitive compartmented information” designation.
During the August 2022 raid, the FBI found records with classification markings (including SCI and other classified designations) on them in just over a dozen different boxes spanning two separate rooms (an office and a storage room) at Mar-a-Lago.
The Justice Department said it seized 33 boxes, containers, and other “items of evidence” from Mar-a-Lago during the raid, stating this included “over 100 classified records, including information classified at the highest levels.” The filing read, “Three classified documents that were not located in boxes, but rather were located in the desks in the ‘45 Office,’ were also seized.”
Two other documents with classified markings were also allegedly retrieved from a Florida storage unit in December 2022.
Federal investigators said they eventually recovered more than 300 documents with classified markings on them from Mar-a-Lago in 2022.
Declassification
Trump has contended he had a “standing order” throughout his presidency that “documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them” and has repeatedly said that “everything” at Mar-a-Lago was declassified by him.
Several former Trump administration officials have cast doubt on that notion, and his lawyers often seemed to dance around the topic in legal filings.
Biden had scoffed at Trump’s declassification defense when talking to reporters in late August 2022, mockingly saying, “I just want you to know I’ve declassified everything in the world. I’m president, I can do — come on.”
Potential criminality
The Presidential Records Act includes the main requirement that all presidential records, including those of the president and of the vice president, be handed over to the National Archives at the conclusion of a presidential administration. Trump did not do that, and now it is known that neither did Biden.
The scale of Trump’s alleged violation included thousands of non-classified documents, and the specific scale of Biden’s alleged violation in terms of non-classified records is not yet public. It is not clear that Trump is going to be prosecuted for violating the Presidential Records Act, and it is unlikely that Biden would be either.
The number of classified documents that Biden had apparently retained appears to be significantly smaller in number than the number that Trump held on to. Trump insisted on keeping numerous allegedly classified documents for a year and a half after his presidency ended in early 2021 and even after the National Archives asked him to hand them over, with his possession ending in an early August 2022 FBI raid. But he has insisted, without showing direct evidence, that he had declassified all of them.
Biden had apparently retained this small number of classified records since the end of Obama’s presidency in early 2017 until early November 2022 — nearly six years after he and Obama left office. As vice president, he did not have the power to declassify records.
Trump is known to be under investigation for a number of potential crimes. The Justice Department made it clear early on that Trump is being investigated for a possible Espionage Act violation and possible obstruction of justice, according to the unsealed warrant for the unprecedented FBI raid of his Mar-a-Lago home.
It is not known what, if anything, Biden might be investigated for.
Penn Biden Center vs. Mar-a-Lago
The classified Biden records had allegedly been kept for years in an office at the Penn Biden Center. The center is housed on the sixth floor of a large office complex at 101 Constitution Avenue in Washington. Many other organizations and businesses have offices in the building near Capitol Hill.
Secretary of State Antony Blinken was the center’s managing director in 2018, and White House aide and Biden counselor Steve Richetti held that position briefly in 2019.
Trump’s presidential records, including classified ones, were found in multiple rooms at Mar-a-Lago, now the center of Trump’s presidential bid. The resort and golf club hosts numerous large public events. Trump and his lawyers have repeatedly argued that the records kept at Mar-a-Lago had been protected by the Secret Service.
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Reactions by Trump and Biden
Trump responded to the news about the Biden Penn Center on Truth Social by asking: “When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified.”
Biden had attacked Trump for holding on to classified records at Mar-a-Lago during a 60 Minutes interview in September 2022.
“How that could possibly happen? How one — anyone could be that irresponsible?” the president asked, adding, “And I thought what data was in there that may compromise sources and methods? By that, I mean names of people who helped, etc. And it just — totally irresponsible.”
Biden had been questioned in late August 2022 if it was ever appropriate for a president to bring home classified documents, and Biden said yes.
“Depending on the circumstance. For example, I have, in my home, a cabined-off space that is completely secure,” the president said. “I’m taking home with me today’s PDB [Presidential Daily Briefing]. It’s locked. I have a person with me — military with me. I read it, I lock it back up, and give it to the military.”
Biden was then asked if it was ever appropriate for a president to bring such documents home without a specialized area to declassify documents, and Biden again said it might be OK.
“It depends on the document, and it depends on how secure the room is,” Biden said.